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La Gazette de L' État de Poudouchéry

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996

Sentence arbitral du travail

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996

Award of the Labour Court ..

996

de tribunal.

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Dangerous Establishments

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Announcements

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[ 995 ]

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

2017 } | 19 {

No.

38

Poudouchéry

Mardi

19

Septembre

2017 (28 Bhadra 1939)

No.

Puducherry

Tuesday

19th

September

2017

996

LA GAZETTE DE L’ETAT

[19 September 2017

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G.O. Rt. No. 130/Lab/AIL/T/2017,

Puducherry, dated 21st August 2017)

NOTIFICATION

Whereas, the Award in I.D. (L) No. 46/2014,

dated 13-6-2017 of the Labour Court, Puducherry in

respect of the industrial dispute between the

Management of Pondicherry Co-operative Wholesale

Stores Limited, Puducherry and Thiru K. Karthikeyan,

Puducherry over non-employment has been received;

Now, therefore, in exercise of the powers conferred

by sub-section (1) of section 17 of the Industrial

Disputes Act, 1947 (Central Act XIV of 1947), read

with the notification issued in Labour Department's

G.O. Ms. No. 20/91/Lab./L, dated 23-5-91, it is hereby

directed by Secretary to Government (Labour) that the

said Award shall be published in the Official Gazette,

Puducherry.

A. RAJARATHINAM,

Under Secretary to Government (Labour).

————

BEFORE THE INDUSTRIAL TRIBUNAL-

CUM-LABOUR COURT AT PUDUCHERRY

Present: Thiru G. THANENDRAN, B.COM., M.L.,

Presiding Officer.

Tuesday, the 13th day of June 2017.

I.D. (L) No. 46/2014

Karthikeyan,

S/o. R. Krishnan,

No. 5, Balar Pillai Street,

Mettupalayam, Puducherry.

. . Petitioners

Versus

The Managing Director,

M/s. Pondicherry Co-operative

Wholesale Stores Limited,

Puducherry.

. . Respondent

This industrial dispute coming up before me for

final hearing on 2-5-2017 in the presence of

Thiru K. Velmurugan, Counsel for the petitioner and

Thiru B. Mohandoss, Counsel for the respondent, upon

hearing both sides, upon perusing the case records,

after having stood over for consideration till this day,

this Court passed the following :

AWARD

1. This industrial dispute has been referred by the

Government as per the G. O. Rt. No. 143/AIL/Lab./J/2014,

dated 24-12-2014 for adjudicating the following:

(i) Whether the dispute raised by the petitioner

Thiru K. Karthikeyan against the management of

M/s. Pondicherry Co-operative Wholesale Stores

Limited, Puducherry over his non-employment is

justified? If justified, what relief, he is entitled to ?

(ii) To compute the relief, if any awarded in

terms of money if, it can be so computed?

2. The averments in the claim statement of the

petitioner, in brief, are as follows :

(i) The petitioner joined in the respondent

management on consolidated basis during the month

of August, 2002 and due to his sincerity and hard

work the management appointed him as Daily rated

Salesman during the month of May, 2005 and since

from the date of his joining he discharged his

services in a sincere and honest manner to the

respondent management and further stated that he

was assigned work in the Amudhasurabhi Liquor

Shop, Muthialpet and on 31-8-2005 during the

midnight, a theft was occurred in the said Liquor

shop and the above fact was known to him only on

1-9-2005 morning when he opened the shop

along with other staffs and as instructed by the

Managing Director, Mr. Suresh, Legal Assistant and

Mr. Janagiraman, Deputy Manager (Liquor), the

petitioner had immediately lodged a police

complaint to the Station House Officer, Muthialpet

Police Station and thereby, the Police Officials

rushed to the spot, enquired the staffs and took their

fingerprints and also registered FIR in respect of

the above theft vide FIR No. 194/2005, dated 1-9-2005

and subsequently the management transferred him

to Vadamangalam Liquor shop on 16-9-2005 and while

being so, the management issued a show cause

notice to the petitioner alleging stock deficit to the

tune of ` 15,331 took place in the month of August,

2005 and thereby, the management asked the

petitioner to deposit the sum of ` 7,665.50 within

3 days of the notice. Immediately, the petitioner

approached the Managing Director Mr. P. Viveganandane

and explained him that the alleged stock deficit is

not due to any misappropriation but, only on

account of the theft that occurred on 1-9-2005, and

however, the Managing Director was not convinced

and insisted him to pay the deficit amount of

` 7,665.50 to stop the further proceedings.

However, on the same day i.e., 17-10-2005, he was

transferred to Head Office, Puducherry without any

reason and the management suspended him from

service vide letter, dated 19-10-2005 and when he

questioned the Managing Director, he said that it is

997

19 September 2017]

LA GAZETTE DE L’ETAT

the procedural formality and insisted him to pay the

full deficit amount of ` 7,665.50 to revoke the

suspension order and as such left with no other

option, on 20-10-2005, the petitioner has paid the

deficit amount to the management and also given

letter, dated 20-10-2005 for revocation of

suspension. But, on the contrary the management

had issued a charge-sheet, dated 21-10-2005 to the

petitioner with false allegations.

(ii) It is further stated that petitioner has

submitted a detailed explanation to the management

on 24-10-2005 but, the management did not

appreciated the facts and contentions made by him

and the management through a letter, dated

26-10-2005 appointed Mr. K. Balaji, Advocate as

Enquiry Officer to enquire into the charges levelled

against him and during the enquiry proceedings, the

petitioner has effectively defended himself and

examined two witnesses on his side and the said

witnesses deposed regarding the occurrence of

theft. However, the Enquiry Officer without properly

appreciating the evidence and deposition of

witnesses submitted his report, dated 28-2-2006

stating that the charges levelled in the charge memo,

dated 21-10-2005 was proved. During the period of

suspension the petitioner was compelled by the

respondent management to participate in the enquiry

proceedings without giving any single pie to him

towards subsistence allowance despite his several

oral representations and further that since from the

date of suspension and to till the date of dismissal,

the management has not paid any single penny to the

petitioner as suspension allowance and acted against

the principles of natural justice and labour

jurisprudence and the enquiry report submitted

thereof is liable to be quashed as null and void. The

Enquiry

Officer

though

recommended

the

management to show leniency upon the petitioner on

humanitarian grounds before inflicting punishment

upon him, it was not considering by the management

and they arbitrarily issued dismissal order, dated

3-3-2006 and thereby, terminated the services of the

petitioner which is against the doctrine of

proportionality and hence, the dismissal order

issued by the respondent management is void,

illegal, invalid, improper in the eye of law.

(iii) It is further stated that on 30-10-2006 the

petitioner made a representation to the management

to review the dismissal order, dated 3-3-2006 but,

no action has been taken by the management and

hence, he has filed a Writ petition before the

Hon'ble High Court of Madras under W.P. No. 8708

of 2010 to dispose off his review petition, dated

30-10-2006 and the same was allowed on 27-4-2010

by the Hon'ble High Court of Madras with a direction

to the management to dispose of the petitioner's

representation, dated 30-10-2006 within a period of

6 weeks and as such the management through letter

dated 18-5-2010 fixed enquiry on 28-5-2010 and

rejected his review petition vide order, dated 3-6-2010.

Aggrieved by the same, the petitioner has filed

another W.P. No. 17032 of 2010 before the Hon'ble

High Court of Madras for quashing the order, dated

3-6-2010 passed by the management and consequently

direct the management to reinstate the petitioner in

his service and in view of the endorsement made by the

petitioner's counsel on 9-1-2014, the Hon'ble High

Court of Madras passed an Order dismissing the

Writ petition as withdrawn granting liberty to

approach the appropriate authority.

(iv) It is further stated that on 19-2-2014, the

petitioner made a representation to the Labour

Officer (Conciliation), Puducherry to intervene in

the above issue in which the respondent management

submitted its reply on 10-6-2014 with evasive and

false allegations against the petitioner and since no

amicable settlement is reached between the parties

to the dispute, this industrial dispute has been

referred to this Court by the Government for

adjudication and further stated that the SHO,

Muthialpet Police Station has submitted the Final

Form Report No. 105/2006, dated 19-6-2006 in FIR

No. 194/2005 before the Judicial Magistrate-II,

Puducherry and thus, it is crystal clear that once FIR

is registered, the police officials came to the scene

of occurrence and done the investigation by

examining the witnesses, taking finger prints, etc.,

and thus, the act of the respondent without considering

the above factual points and imputing the false

charge of stock deficit upon the petitioner had no

legs to stand and further stated that the act of the

management is arbitrary, illegal, mala fide, unjust

and invalid in the eye of law and therefore, the order

of termination is liable to be set aside and further

that the management and the Enquiry Officer failed

to discuss anything about the theft occurred in the

Muthialpet Bar on 31-8-2005 inspite of several

representation made by the petitioner and the

statements made by the other independent witnesses

during the enquiry proceedings and further that the

Managing Director of the respondent management

was transferred on 28-2-2006, but, however without any

authority and sanction of law, the Managing Director

has passed the dismissal order, dated 3-3-2006 in a

hurried situation which reflects the mala fide

intention of the management and thus, the Managing

Director is incompetent to pass the dismissal order,

dated 3-3-2006 and hence, the dismissal order is

null and void having no effect in the eye of law.

(v) It is further stated that the respondent

management has not followed the principle of

natural justice and straight away issued the dismissal

order enclosing the enquiry report to the petitioner

998

LA GAZETTE DE L’ETAT

[19 September 2017

and that right from the beginning the management

was acted with a mala fide intention and ulterior

motive so as to terminate the services of the

petitioner at any cost and further stated that by the

act of the respondent, the petitioner's health got

deteriorated and he has spent nearly 1.5 lakhs for

all these years in filing Writ Petitions before the

Hon'ble High Court, travelling expenses, Advocate,

fees, etc., and the respondent management has not

paid any single pie to the petitioner till date

towards his terminal benefits and that the dismissal

order dated 3-3-2006 is arbitrary, null and void,

illegal, invalid, improper and hence, it is liable to

be set aside and prayed this Court to direct the

respondent management to reinstate the petitioner

in service with full back wages, continuity of

service and all other attendant benefits.

3. The brief averments of the counter statement

filed by the respondent are as follows :

The respondent denied all the averments made by

the petitioner in the claim petition and stated that

the petitioner was appointed initially on consolidated

basis and subsequently as daily rated Salesman and

the petitioner was not discharged his services in

a sincere and honest manner and there is no truth

on the allegation of the petitioner that a theft was

occurred on 31-8-2005 at midnight at Amudhasurabi

Liquor Shop, Muthialpet, Puducherry and further

stated that the disciplinary proceedings was

initiated against the petitioner for the charge

described in the charge memo, dated 21-10-2005

towards misappropriation of amount of ` 15,331 on

1-9-2005 by committing stock deficit and the said

act of misappropriation by the petitioner was

a misconduct as per clause 29(26) of service

regulations and it also attract misconduct of

negligence as per clause 29(1) of the service regulations

and the act of commission will come under the

purview of the misconduct and fails to maintain

absolute integrity and devotion to duty which attract

under clause 28(3)(2) of service regulation and that

based on the charges, domestic enquiry was

conducted by an independent person namely, Thiru

K. Balaji, Advocate, Puducherry and as per the

findings of the Enquiry Officer all the charges of

misconduct were proved and as such the management

issued the order of termination dated 3-3-2006 by

a speaking order based on principle of natural

justice and further stated that the deficit amount was

paid by the petitioner voluntarily and that the

payment of stock deficit amount will not wipe out

the charges of misconduct as per the principle of

labour jurisprudence and the punishment of dismissal

order, dated 3-3-2006 was passed based on the

gravity of misconduct and there is no possibility to

consider for employment of the petitioner and prays

to dismiss the claim petition of the petitioner.

4. In the course of enquiry WW.1 was examined

and Ex.W1 to Ex.W32 were marked and on the side of

the respondent RW.1 was examined and Ex.R1 and

Ex.R2 were marked.

5. The point for consideration is:

Whether the dispute raised by the petitioner

against the respondent management over his

non-employment is justified or not and whether the

petitioner is entitled for the relief as claimed by

him?

6. Both sides are heard. The submission of both

the parties, the evidence let in by either sides and the

exhibits marked on both sides are carefully considered.

In support of his contention the learned Counsel for

the

petitioner has relied upon the Judgment

reported in (i) 2013 (3) MLJ 101, (ii) CDJ 2013

MHC 2606, (iii) CDJ 2013 MHC 868. On the other

hand, the learned Counsel appearing for the respondent

management has also relied upon the following

Judgments : (i) CDJ 2006 SC 662, (ii) CDJ 2006 SC

1072, (iii) CDJ 2007 MHC 281, (iv) CDJ 2006 SC

305, (v) CDJ 2006 SC 113.

7. It is not in dispute that, the petitioner has

joined in the respondent management on consolidated

basis in the month of August, 2002 and subsequently,

he was appointed as daily rated Salesman during the

month of May, 2005 and he has discharged his service

assigned by the respondent management at Amudhasurabi

Liquor Shop and due to some deficit in the stock the

disciplinary proceedings was initiated against the

petitioner for misappropriation of amount to the tune

of ` 15,331 by committing stock deficit and after the

enquiry was conducted by the Enquiry Officer the

petitioner was terminated from service on 3-3-2006.

8. It is the evidence of WW.1 that he has not

committed any deficit in the stock and that there was

a theft taken place at the Liquor shop on the mid-night

of 31-8-2005 and the police complaint has been

lodged on 1-9-2005 before the Muthialpet Police

Station and they have registered FIR in Cr. No. 194/

2005 and subsequently he was transferred from

Amudhasurabi Liquor Shop to Vadamangalam Liquor

Shop on 16-9-2005 and the respondent management

has issued a show cause notice to the petitioner for

stock deficit to the tune of ` 15,331 and he has not

misappropriated any amount as alleged by the

respondent and only stock deficit occurred due to the

theft taken place on the mid-night of 31-8-2005 and

after the receipt of the notice for stock deficit he

approached the Managing Director of the respondent

management and the Managing Director insisted him

to pay the deficit amount of

` 7,665.50 to the

management and he was suspended from service and

subsequently he has paid the deficit amount on

20-10-2005 to the respondent management and

999

19 September 2017]

LA GAZETTE DE L’ETAT

subsequently the domestic enquiry was conducted

without following the procedure and the petitioner has

been permitted to participate in the enquiry

proceedings and a report was submitted on 28-2-2006

and no subsistence allowance was paid to him and he

was terminated from service on 3-3-2006 and he

approached the Hon'ble High Court in W.P. No. 8708

of 2010 and the Hon'ble High Court was directed the

respondent management to dispose the petitioner's

representation, dated 30-10-2006 within a period of

6 weeks and the respondent management fixed an

enquiry on 28-5-2010 and rejected his review petition

on 3-6-2010 against which the petitioner had filed a

Writ Petition in W.P. No. 17032 of 2010 to quash the

order passed by the respondent management and to

reinstate the petitioner in service and however in view

of the endorsement of the petitioner's Counsel on 9-1-2014

the Hon'ble High Court was pleased to dismiss the

Writ Petition as withdrawn granting liberty to approach

the appropriate authority and the respondent has not

followed the procedure of principles of natural justice

straight away issued the dismissal order enclosing the

enquiry report to the petitioner and the respondent

management and the Enquiry Officer have failed to

discuss about the theft occurred in the mid-night of

31-8-2005. In order to prove the case of the

petitioner, apart from the oral evidence of WW.1, the

petitioner has exhibited Ex.Wl to Ex.W32. The oral

evidence of WW.1 and the documents marked by him

would evident that on 1-9-2005 the Muthialpet Police

Station has registered a case for the theft committed

at the respondent establishment wherein, the petitioner

was working and it was closed as undetected on 19-6-2006

and subsequently, the petitioner was transferred to

other establishment of the respondent and he was

suspended from service and the petitioner made some

representation to the respondent management and has

given explanation and enquiry was conducted against

him and subsequently he was terminated from service

against which he has filed Writ Petitions before the

Hon'ble High Court and the petitioner has obtained

some information under the Right to Information Act.

9. On the side of the respondent, the Deputy

Manager of Pondicherry Co-operative Wholesale

Stores Limited was examined as RW.1 and he has

stated in his evidence that it is true that the petitioner

has joined in the Pondicherry Co-operative Wholesale

Stores Limited initially on consolidated basis and

subsequently as daily rated Salesman during the May,

2005 and that the petitioner was assigned to work in

the Amudhasurabi Liquor Shop, Muthialpet by the

respondent management and however, there is no truth

in the allegation that he has discharged his service in

a sincere and honest manner without any blemish and

also the allegation that on 31-8-2005 during the

mid-night a theft occurred in the Amudhasurabi Liquor

Shop and further he deposed that the respondent has

taken disciplinary action for the mis-conduct committed

by the petitioner and that there is a deficit in the stock

as per the stock register and that therefore, the petitioner

has committed mis-appropriation on 1-9-2005 by

deficiting the stock of the Amudhasurabi Liquor Shop

and the domestic enquiry was conducted by an

independent person and in the enquiry the charges of

mis-conduct was proved against the petitioner and

a report was submitted by the Enquiry Officer on 28-2-2006

and that therefore the petitioner was given an

opportunity to defend his charge and hence, the

management has dismissed the petitioner from service

through office order, dated 3-3-2006 by a speaking

order and that therefore, the petitioner is not entitled

for any reinstatement.

10. From the evidence of RW.1, it is clear that

the contention of the respondent management is that the

petitioner had committed misconduct of misappropriation

to the tune of ` 15,331 on 1-9-2005 and the domestic

enquiry was conducted in accordance with the natural

justice and thereby, he has been removed from service

and hence, the petitioner is not entitled for any order

of reinstatement. On the other hand, it is clear from

the pleadings of the petitioner that the contention of

the petitioner is that the stock deficit was occurred

only due to the theft occurred on the mid-night of

31-8-2005 for which the FIR was registered on 1-9-2005

and the deficit amount also has been paid by him as

directed by the management and he has not been given

appropriate opportunity in the domestic enquiry and

even the Enquiry Officer who conducted the domestic

enquiry has recommended that to give only lenient

punishment to him, it was not considered by the

management and it is also clear from the evidence of

WW.1 that the further contention of the petitioner is

that he has not committed any misappropriation as

alleged by the respondent management and theft is the

only reason for the stock deficit and after the enquiry,

the respondent management has not given any show

cause notice before passing the order of termination

of service of the petitioner and though the petitioner

was under suspension the subsistence allowance has

not been paid to the petitioner while the domestic

enquiry was conducted.

11. The learned Counsel appearing for the

petitioner pointed out that they have proved the fact

of theft was committed at Amudhasurabi Liquor

Shop by filing the copy of the FIR registered by the

Muthialpet Police Station as Ex.W1 and that the

respondent management has not given opportunity by

issuing a show cause notice to decide the punishment

which is to be given to the petitioner after getting

domestic enquiry report from the Enquiry Officer and

that the domestic enquiry was not in accordance with

the principles of natural justice and since even the

petitioner has not given subsistence allowance though

he was suspended at the time of conducting the

domestic enquiry.

1000

LA GAZETTE DE L’ETAT

[19 September 2017

12. On this aspect the evidence of RW.1 was

perused which runs as follows:

“

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Memo

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Memo

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





























”

From the above evidence, it is clear that the

petitioner has not committed any other mis-conduct

in their service except the stock deficit alleged to

have been committed by him on 1-9-2005 and

further it is also clear that the respondent

management would not take any further action for

the stock deficit if, the explanation is accepted by

them for the stock deficit. But, in this case, they

have not exhibited any explanation of any one of the

employee before this Court.

Further evidence of RW.1 runs as follows :

“................. 

` 



























Managing Director

















































”

From the above evidence, it is clear that the

respondent management has admitted the fact that

information in Ex.W32 was issued by the

respondent Co-operative Stores Limited under the

Right to Information Act to the petitioner and it is

also admitted by the respondent management RW.1

that for every year the respondent management has

found not less than 100 workmen are committing

stock deficit and from the year 2000-2015 for

about 15 years not less than 1,500 workmen have

committed stock deficit in which only 4 persons

have been terminated and furthermore, it is also

admitted by RW.1 that one Manikandan whose name

was mentioned in Ex.W32 and who was removed

from service by the respondent management for

misappropriation by committing stock deficit has

been once again appointed in the respondent Co-

operative Stores Limited and furthermore, though

admittedly 1,500 workmen alleged to have been

committed misappropriation by committing stock

deficit the respondent management has failed to

state that why 1496 workmen have been left without

any punishment of termination of service since 4

only have been given punishment of termination of

service. These facts would go to show that the

respondent management has not taken any uniform

stand in taking disciplinary action in respect of

misappropriation committed by the workers. Though

admittedly, 1,500 workmen have been committed

stock deficit, nothing is before this Court why

1,496 workmen have not been terminated from

service and 4 of them alone have been terminated

from service for the charge of stock deficit.

13. All the citations relied upon by the

respondent management has enlightened that if any

workman, committed any misappropriation it should be

viewed seriously and has to be punished severely. But,

in this case, admittedly the FIR has been registered

by the police for the offence of theft of some goods

in the Liquor shop and the same was admitted by the

respondent side. Mere the case was closed as

undetected could not amount that this petitioner and

the Junior Assistant have committed stock deficit and

that therefore, the charges levelled against the

1001

19 September 2017]

LA GAZETTE DE L’ETAT

petitioner

itself

is

suspicious

and

in

such

circumstances, the severe punishment of termination

from service cannot be imposed and hence, the

punishment of termination is not a reasonable one in

this case.

14. Particularly, in this case admittedly, the FIR

has been registered by the police for the offence of

theft alleged to have been happened on the mid-night

of 31-8-2005 which would go to show that there might

be a theft in the said night and thereby, the stock deficit

might have been happened on 1-9-2005 when the

respondent officers audited the same. This alone is

sufficient that there is a suspicion over the alleged

mis-conduct of charge levelled against the petitioner

that he has committed stock deficit. Though the police

might not have found out the accused who has

committed the theft and closed the case as undetected

that alone is not sufficient to conclude that this

petitioner alone has committed stock deficit with the

intention of misappropriate the funds of the

respondent and thereby, the decision taken by the

Enquiry Officer that the petitioner has committed

stock deficit in the domestic enquiry is not sustainable

and therefore, the decision taken by the respondent

management and the Enquiry Officer that conclusively

the petitioner has committed stock deficit cannot be

accepted.

15. Furthermore, as far as the punishment of

termination from the service of the petitioner is

concerned, it is contended by the petitioner that the

respondent management has not given any show cause

notice to the petitioner to decide the punishment.

It is learnt from Ex.W12 - Enquiry report that the

enquiry was finalized and the report was made only on

28-2-2006 and the petitioner was terminated on 3-3-2006

without giving any notice. The respondent also has not

exhibited any such notice before this Court that they

have issued any notice to the petitioner for giving an

opportunity to make his representation as to why the

proposed punishment should not be inflicted against

him. In this case, no notice was sent by the respondent

management to the petitioner after getting the report

from the Enquiry Officer before terminating the

petitioner from service. As admittedly, no notice was

given to him by the respondent management, it is clear

that they have not followed the procedures laid down

under the Constitution of India under Article 311(2)

by refusing the reasonable opportunity to the

petitioner. It is mandate to give an opportunity to the

petitioner to make his representation as to why the

proposed punishment should not be inflicted against

him. But, in this case, no notice was issued before

passing the order of termination of the petitioner from

service. Hence, it is clear that the respondent

management has not followed the principles of natural

justice in giving opportunity to the petitioner before

terminating the petitioner from service.

16. Furthermore, the learned Counsel appearing

for the petitioner relied upon the Judgment reported

in CDJ 2013 MHC 2606, in which the Hon'ble High

Court of Madras has observed that,

“As rightly argued by the learned Counsel for the

second respondent that when the petitioner was

placed under suspension from 11-3-1996, it was the

bounden duty of the petitioner Management to pay

the subsistence allowance till passing of the final

order of termination on 1-9-2000. But, the

petitioner Management paid the subsistence

allowance from 11-3-1996 to 31-10-1998 only and

after 1-11-1998 for the reason best known to them,

they stopped the subsistence allowance. Since, the

enquiry was held after 31-10-1999, the petitioner

Management

financially prevented the second

respondent employee from participating in the

enquiry for the reason of non-payment of

subsistence allowance. In this context, the Law is

well stated that

“the payment of subsistence allowance to an

employee under suspension was not a bounty but,

a right. No justifiable ground was made out by the

respondents for non-payment of the subsistence

allowance. The appellant was unable to appear in

the enquiry on account of non-payment of

subsistence allowance. It was a clear case of

breach of principles of natural justice.”

From the above observation of the Hon'ble High

Court, it is clear that whenever the workman is

suspended, he should be given subsistence allowance

till the end of the disciplinary action, otherwise it

can be inferred that the respondent management has

financially

prevented

the

workman

from

participating in the enquiry for the reason of non-

payment of subsistence allowance. In this case, also

admittedly, the petitioner was not given subsistence

allowance by the respondent management throughout

the domestic enquiry and hence, it can be inferred

that the petitioner was financially prevented from

participating the enquiry. Furthermore, as rightly

pointed out by the petitioner's Counsel admittedly

though the petitioner has paid entire deficit amount

within the short period of 10 days from the date of

show cause notice, the punishment of termination

is highly excessive and he can be given lighter

punishment and furthermore, while 1496 delinquent

workmen have been left without any punishment of

termination of service, though the petitioner has

1002

LA GAZETTE DE L’ETAT

[19 September 2017

paid the stock deficit amount as directed by the

respondent management, the punishment given to

the petitioner is highly excessive and that therefore,

for the foregoing reasons, it is clear that the

punishment given by the respondent management

that terminating the petitioner from service is not

sustainable and unlawful and hence, the dispute

raised by the petitioner before the Conciliation

Officer is justified and the petitioner is entitled for

order of reinstatement.

17. As this Court has decided that the industrial

dispute

raised

by

the

petitioner

before

the

Conciliation Officer is justified, it is to be decided

whether the petitioner is entitled for back wages with

continuity of service as claimed by the petitioner. In

respect of the backwages and other attendant benefits

absolutely there is no evidence that the petitioner was

not working anywhere else after the dismissal and that

therefore, he cannot be given full back wages.

However, it is not the case of the respondent that the

petitioner is working anywhere else and hence

considering all the above facts and circumstances and

the above foregoing reasons, this Court finds that the

petitioner is entitled for only part of back wages and

hence, this Court tentatively fix that the petitioner is

entitled only for 25% back wages.

18. In the result, the petition is partly allowed and

the industrial dispute raised by the petitioner over the

non-employment is justified and an Award is passed by

directing the respondent to reinstate the petitioner in

service with continuity of service and further directed

the respondent management to pay 25% of back wages

to the petitioner from the date of raising the industrial

dispute before the Conciliation Officer till the date of

reinstatement with other attendant benefits. No cost.

Dictated to the Stenographer, transcribed by her,

corrected and pronounced by me in the open Court on

this the 13th day of June, 2017.

G. THANENDRAN,

Presiding Officer,

Industrial Tribunal-cum-Labour Court,

Puducherry.

List of

petitioner’s witness:

WW.1

— 23-1-2016

— Karthikeyan

List of petitioner’s exhibits:

Ex.W1 —

1-9-2005

— Copy of the FIR No.

194/2005 by the Station

House Officer, Muthialpet,

Police Station.

Ex.W2 — 19-6-2006

— Copy of the Final Form

Report No. 105/2006 in

FIR. No. 194/2005 submitted

by the Station House

Officer, Muthialpet, Police

Station to the Hon'ble

Judicial Magistrate-II,

Puducherry.

Ex.W3 — 16-9-2005

— Copy of the transfer

order of the petitioner

issued by the management.

Ex.W4 —17-10-2005 — Copy of the transfer

order of the petitioner

issued by the management.

Ex.W5 —19-10-2005 — Copy of the Suspension

order of the petitioner

issued by the management.

Ex.W6 —18-10-2005 — Copy

of

the

letter

submitted by the petitioner

to the management.

Ex.W7 —20-10-2005 — Copy of the receipt

issued by the respondent

towards payment of the

deficit amount paid by

the petitioner.

Ex.W8 —20-10-2005 — Copy of the letter given

by the petitioner to the

management.

Ex.W9 —21-10-2005 — Copy of the charge-

sheet

issued

by

the

respondent management.

Ex.W10—24-10-2005 — Copy of the explanation

letter

sent

by

the

petitioner

to

the

respondent management.

Ex.W11—26-10-2005 — Copy of the Enquiry

Officer ap po intment

letter.

Ex.W12—28-2-2006

— Copy of the enquiry

report.

Ex.W13— 3-3-2006

— Copy of the dismissal

order issued by the

management.

Ex.W14—30-10-2006 — Copy of the letter given

by the petitioner to the

management requesting

review of the dismissal

order.

1003

19 September 2017]

LA GAZETTE DE L’ETAT

Ex.W15—27-4-2010

— Copy of the order of the

Hon'ble High Court of

Madras

in

W.P.No.

8708/2010.

Ex.W16—18-5-2010

— Copy of the letter sent

by the management to

the petitioner.

Ex.W17— 3-6-2010

— Copy of the order sent

by

the

management

rejecting the petitioner's

review petition.

Ex.W18— 9-1-2014

— Copy of the order of the

H o n 'b l e H i g h C o u r t

of

Madras

in

W.P.

No. 17032/2010.

Ex.W19—19-2-2014

— Copy

of

the

representation made by

the petitioner to the Labour

Officer (Conciliation),

Puducherry.

Ex.W20—10-6-2014

— Copy of the reply letter

s u b m i t t e d b y t h e

respondent to the Labour

Officer (Conciliation),

Puducherry.

Ex.W21—26-6-2014

— Copy of the objection

letter submitted by the

petitioner to the Labour

Officer (Conciliation),

Puducherry.

Ex.W22—26-9-2014

— Copy of the failure

report forwarded by

the

Labour

Officer

(Conciliation), Puducherry

to

the

Secretary

to

Government (Labour),

Puducherry.

Ex.W23—10-10-2005 — Copy of the Memo.

issued by the respondent

management

to

the

petitioner.

Ex.W24—23-10-2006 — Copy of the reminder

letter submitted by the

petitioner

to

the

respondent.

Ex.W25—19-1-2010

— Copy

of

the

RTI

application submitted by

the petitioner to the

PIO

of

respondent

management.

Ex.W26—13-2-2010

— Copy of the RTI reply

given by the respondent

to the petitioner.

Ex.W27— 8-2-2014

— Copy

of

the

RTI

application submitted by

the petitioner to the PIO

of respondent management.

Ex.W28—28-2-2014

— Copy of the RTI reply

given by the respondent

to the petitioner.

Ex.W29— 11-3-2014

— Copy of the RTI Appeal

s u b m i t t e d

b y

t h e

petitioner to the Registrar

of Co-operative Societies,

Puducherry (1st Appellate

Authority).

Ex.W30—15-4-2014

— Copy

of

the

Order

passed by the Registrar

of Co-operative Sovieties,

Puducherry (1st Appellate

Authority).

Ex.W31—21-3-2014

— Copy of the letter sent

by

the

respondent

management

to

the

petitioner along with

enclosure.

Ex.W32—13-2-2016

— Copy of the reply to

Form-I, dated 14-1-2016

filed under the Right to

Information Act, 2005.

List of respondent’s witness:

RW1

— 14-2-2017

— R.T. Gunasekaran

List of respondent’s exhibits:

Ex.Rl

—

— Copy of the Employees'

Service Regulations of the

P o n d i c h e r r y

Cooperative Wholesale

Stores

Limited,

P44

(Amudhasurabi).

Ex.R2

— 27-7-2010

— Copy

of

the

Writ

Petition in W.P. No.

17031/2010 filed by

R. Ramesh before the

Hon'ble High Court of

Madras.

G. THANENDRAN,

Presiding Officer,

Industrial Tribunal-cum-Labour Court,

Puducherry.